What To Do After a Workplace Safety Incident in NSW — A Practical Guide

Introduction

Workplace incidents can create immediate safety concerns as well as legal, operational and regulatory consequences. The way an organisation responds in the early stages can significantly influence liability, enforcement exposure and regulatory outcomes. This guide outlines the key legal and practical steps organisations in New South Wales should consider following a workplace incident.

What is a Notifiable Incident Under NSW WHS Law?

Under the Work Health and Safety Act 2011(NSW), a notifiable incident is strictly limited to three categories only:

• The death of a person.
• A serious injury or illness (as defined by the Act)
• A dangerous incident exposing a person to serious risk from immediate or imminent exposure to a hazardous event.

Not every workplace injury or event is notifiable. The statutory threshold must be met.

What Counts as a Serious Injury or Illness?

A serious injury or illness includes circumstances where a person requires:

• Immediate treatment as an in-patient in a hospital; or
• Immediate treatment for amputation, serious head injury, serious eye injury, serious burn, spinal injury, loss of bodily function, or serious laceration; or
• Medical treatment within 48 hours of exposure to a substance

Minor injuries , first aid treatment, or ordinary medical visits generally do not meet the legal threshold.

What is a Dangerous Incident?

A dangerous incident is a serious near miss exposing a person to serious risk from immediate or imminent exposure to events such as:

• Uncontrolled explosion, fire or implosion
• Electric shock
• Collapse or partial collapse of a structure
• Collapse, overturning or failure of plant
• Collapse of an excavation or tunnel
• Uncontrolled escape of gas, steam, pressurised substance or hazardous material

A dangerous incident may be notifiable even if no injury occurs, provided the risk was serious.

When Must SafeWork NSW Be Notified?

If a notifiable incident occurs, the regulator must be notified immediately after the person conducting the business or undertaking becomes aware of it. Failure to notify when required may itself constitute a breach of the Act.

Preserving the Incident Site (Legal Requirement)

Following a notifiable incident, the site must not be disturbed except to assist an injured person, remove a deceased person, make the site safe or prevent further incident, or facilitate action by police or emergency services. Improper disturbance of the site can create additional legal exposure.

When SafeWork NSW May Become Involved

SafeWork NSW may attend a workplace following a notifiable incident, a serious injury or fatality, a complaint or report, or identified safety breaches. Inspectors have broad statutory powers, including entering workplaces, requiring documents, interviewing persons, seizing evidence and issuing notices.

Immediate Legal Risks for Businesses (PCBU)

In the aftermath of a workplace safety incident, some common flow on legal risks include:

• Breach of primary WHS duties
• Regulatory investigation and enforcement action
• Improvement or prohibition notices
• Prosecution and substantial penalties
• Personal liability exposure for officers
• Operational and reputational impact

Common Mistakes that Businesses Make

A workplace safety incident can be very stressful, confronting and traumatising for all people involved. It is important to maintain calm, keep a level head and seek expert guidance and counsel to avoid common mistakes, including:

• Disturbing the incident site improperly
• Misjudging whether an incident is notifiable
• Providing incomplete or inaccurate information
• Delaying structured fact gathering
• Treating the issue as purely operational rather than legal
• Attempting to manage regulator engagement without guidance

Practical Steps After a Workplace Safety Incident

The following keys steps can act as a go to list to ensure workplace incidents are properly managed and dealt with:

1. Ensure safety and stabilise the situation.
2. Assess whether the incident is notifiable.
3. Notify SafeWork NSW immediately if required.
4. Preserve the incident site.
5. Begin structured fact gathering.
6. Manage regulator interaction carefully.
7. Seek legal and practical guidance early.

Can Directors and Officer of the Business be Personally Liable?

Yes. Officers have a statutory duty to exercise due diligence to ensure the organisation complies with its WHS obligations. Where due diligence is insufficient, personal exposure may arise.

Frequently Asked Questions

Do all workplace safety incidents need to be reported to SafeWork NSW?

No. Only incidents that meets the statutory definition of a notifiable incident must be reported.

Can a dangerous incident be notifiable even if no one is injured?

Yes. A serious near miss exposing a person to a serious risk may be notifiable even without injury.

Should businesses seek legal guidance after a workplace incident?

Yes. Early, informed guidance often assists in managing regulatory, legal and operational risk.

Final Perspective

Workplace incidents involve more than immediate safety issues — they can create significant legal and regulatory exposure. Early, informed decisions, accurate fact gathering and a structured response are critical to protecting both people and the organisation.

About the Author

Jason Barakat - WHS Lawyer & Consultant

Jason the Principal of Obsequium and advises organisations across Australia on work health and safety law, regulatory investigations, and compliance governance. With over 18 years of experience, he combinses legal expertise with practical consulting insight to help businesses navigate complex WHS oblgiations, respond effectively to incidents and regulator action, and implement practical systems that strenghten safety and operational performance.